Model TOIL clause, Lawler investigation, FW Bill debate

The FWC full bench has finalised the model time-off-in-lieu award clause, the government has announced it will investigate complaints against FWC Vice President Lawler and debate continues today in the Senate on the Fair Work Amendment Bill.

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The Fair Work Commission has finalised the model time-off-in-lieu award clause, the government has announced it will investigate complaints against FWC Vice President Lawler and debate continues today in the Senate on the Fair Work Amendment Bill.

FWC finalises model time-off-in-lieu award clause

After hearing submissions on its proposed model term dealing with time off in lieu (TOIL) of payment for overtime, a Fair Work Commission (FWC) Full Bench has handed down its decision on the final clause proposed for modern awards. The model TOIL clause and a proposed template agreement are set out as attachments to the decision.

In its Award Flexibility Decision of 16 July 2015, the FWC full bench set out a provisional model term dealing with time off in lieu of payment for overtime and asked for submissions from interested parties. It dealt with these submissions in a hearing on 4 September 2015. The full bench had previously issued a statement that it would defer dealing with submissions relating to not varying awards that already contained a TOIL provision and the issue of whether the model term should be included in particular awards, until 10 December.

Employer groups had submitted that the provisional model TOIL term was “unnecessarily restrictive and complex”, in particular the “requirement for a separate written agreement must be made by the employee and employer for each occasion on which overtime that has been worked is to be taken as TOIL”. The full bench disagreed and noted that in circumstances where TOIL is taken at the ordinary time rate, there is a financial incentive for employers to encourage this arrangement (thus avoiding payment of overtime rates) and, in its view, it was important that employees not be pressured into agreeing to TOIL arrangements. The requirement for a separate written agreement provides evidence of the “consensual nature of the arrangement”. To simplify the administrative process as much as possible, the full bench proposes adding a schedule to each modern award with a template TOIL agreement – the proposed template is set out at Attachment 2 to the decision. Employers will not be required to use the template, but can use a form they wish, including “and exchange of emails”.

Other changes made by the full bench to the proposed model clause included, in agreeing with employer submissions that the requirement for a worker to take TOIL within 12 weeks of accrual is “too short, is overly restrictive and potentially counterproductive”, increasing the period to six months.

The full decision includes a “marked up” version of the provisional model TOIL term incorporating the full bench’s changes, as well as the final version of the proposed clause.

The full bench will next deal with the issue of inserting the model terms into particular modern awards and will be taking submissions. The matter will be heard on 10 December 2015.

See: 4 yearly review of modern awards — Award flexibility common issue—time off in lieu of payment for overtime — model term [2015] FWCFB 6847

FWC Vice President Lawler to be investigated

Complaints against Vice President Lawler of the Fair Work Commission (see related story) will be investigated by an independent investigator, the Minister for Employment, Senator Michaelia Cash announced this morning.

In a statement, Senator Cash said a “number of concerns have been raised” including in the media and also by complaints to FWC President Ross and to the former Minister for Employment, Eric Abetz.

Senator Cash said it is “essential that public confidence in the Fair Work Commission is maintained” and she will be appointing an independent investigator, whose identity and terms of reference will be announced shortly.

Fair Work Amendment Bill debate continues

The Fair Work Amendment Bill 2014 will again be the subject of debate in the Senate today. A number of amendments have been proposed in the Senate from the Greens, Labor and the Senate cross-benchers.

The Greens have proposed amendments relating to giving employees enforceable rights for flexible working arrangements. Independent Senate cross-benchers have proposed amending the period from three months to six months, if negotiations for a single-enterprise greenfields agreement have not completed, then the employer can its proposed agreement to the FWC for approval.